Monday, January 3, 2011

Environmental Court Issues First Decision Applying the In re Village Associates’ Prime Agricultural Soils Standard

In re Brosseau/Wedgewood Act 250 PRD Application
Docket No. 260-11-08 Vtec
December 8, 2010
Judge Wright

In one of the last decisions issued in 2010, In re Brosseau/Wedgewood, the Environmental Court had occasion to apply the Vermont Supreme Court’s construction of the Act 250 definition of “primary agricultural soil” as articulated in In re Village Associates, 2010 VT 42A – a Supreme Court opinion that was issued in June of 2010.

In re Village Associates stated that the Act 250 definition of “primary agricultural soils” contains three parts, all of which must be met in order for soils to be classified as “primary agricultural soils.” 2010 VT 42A, ¶ 12. The first part, and the part with which the Village Associates Court was concerned, is “a scientific determination as to the soil composition and a determination that ‘soil map units . . . have . . . few limitations for cultivation or limitations which may be easily overcome.’ ” Id. (quoting 10 V.S.A. § 6001(15)). The major change that In re Village Associates instituted is to require the Act 250-decision-maker to consider economic factors in determining whether a “limitation” that prevents soils from serving as agricultural soils “may easily be overcome,” and thus whether the soils meet the definition of “primary agricultural soils.” In Village Associates, the “limitation” was that the soils that met the soil composition characteristics of prime ag soils were covered by forest. The project developer argued that the cost of removing the trees in order to make the land suitable for cultivation must be considered in the determination of whether the “limitation” could be easily overcome. The Supreme Court agreed, and it remanded the matter back to the Environmental Court for a consideration of the economics of removing the forest in order to make the land suitable for an agricultural enterprise.

The Environmental Court has now applied the Village Associates ruling in the context of In re Brosseau – a different Act 250 case in which a project was denied an Act 250 permit due to the presence of prime ag soils. Similar to Village Associates, the land at issue in Brosseau was largely covered by forest. To comply with the Village Associates ruling, the Environmental Court held an additional evidentiary hearing and made findings specifically related to the cost of removing the forest cover to determine whether the land met the definition of “primary agricultural soil.”

The Environmental Court heard evidence regarding the potential use of any harvested forest, finding that the wood could only be used for wood chips or cordwood, but not lumber; the cost of removing the forest over time—as would be done by a farmer—as opposed to removing it all at once with required erosion control permits—as would be done by the developer—finding that the cost for the farmer would be around $1,000/acre and the cost for the developer would be around $2,625/acre; and the net income per acre of the land for various agricultural crops. Based on its findings, the Environmental Court concluded that the forest cover could be removed to allow the land to be used for agricultural purposes in a manner that would be economically beneficial, and therefore the land met the first part of the definition of primary agricultural soils, even using the Village Associates standards.

Although the land met this first part of the prime ag soils definition, the Environmental Court concluded that the land ultimately did not satisfy the third part of the definition. The Court found that the land was not in a location such that it would be capable of supporting or contributing to an agricultural enterprise because there was no evidence presented that any of the agricultural operations that were within relatively close proximity to the land would be willing to use the property for agricultural purposes. On this basis, the Court concluded that the land did not contain prime ag soils. Accordingly, the Court granted the project an Act 250 permit.